Steven Donald Stew’s petition for habe-as relief presents a novel factual situation concerning the application of the Double Jeopardy Clause of the Fifth Amendment. After being tried in Hawaii state court for attempted murder arising out of Stew's alleged separate machete attacks of two homeless men over disputes involving alcohol, the jury returned a verdict of guilty on the charge of attempted first degree murder. The jury also returned “Not Guilty” verdicts on the two counts of attempted second degree murder. The trial court entered judgment on the guilty verdict and sentenced Stow accordingly. Neither the court nor counsel questioned the propriety of the jury’s not guilty verdicts on the charges of attempted second degree murder; however, the record does not reflect whether counsel or the court were aware that the jury had written “Not Guilty” on the verdict form next to those two counts before the court entered judgment.
On direct appeal, the Hawaii Supreme Court reversed the jury’s judgment of conviction of attempted first degree murder. The court, however, held that the not guilty verdicts on the two counts of attempted murder did not, in substance, constitute acquittals and therefore the State could retry Stow for attempted second degree murder without subjecting him to double jeopardy. Following remand by the Hawaii Supreme Court, but before the retrial began, Stow, pursuant to 28 U.S.C. § 2254, sought federal habeas relief on the ground that a retrial on the charges of attempted second degree murder would violate his Fifth Amendment right against double jeopardy. The district court granted Stew’s petition and the State appealed.
Preliminarily, we hold that Stow’s habeas petition is properly considered under 28 U.S.C. § 2241, not § 2254, because at the time Stow filed his petition he was not “in custody pursuant to the judgment of a State court.” Thus, to obtain habeas relief, Stow need only show that a retrial would violate his right against double jeopardy. We need not consider whether the Hawaii Supreme Court’s decision was “contrary to, or involved an unreasonable *883 application of, clearly established Federal law.” § 2254(d)(1).
We farther hold that the jury’s “Not Guilty” verdicts create a double jeopardy bar to Stew’s impending retrial on the charges of attempted second degree murder. To do otherwise, and allow an appellate court over six years later to speculate whether the jury really meant to acquit when it wrote “Not Guilty,” would create an unwarranted exception to the “fundamental” and “absolute” rule of double jeopardy that a jury’s verdict of acquittal is final — an exception that would inevitably undermine the rule’s “absolute” nature.
See Burks v. United States,
I.
Background
Stow was indicted in Hawaii state court on charges stemming from Stow’s machete attacks on Douglas Parkinson and Samuel Nash. Stow allegedly attacked Parkinson because Parkinson would not share his beer. The machete attack resulted in permanent injuries to Parkinson’s head, face and wrist from numerous machete blows. The next day, Stow allegedly attacked Nash because Stow gave Nash nine dollars to purchase liquor, but when Nash returned from the store he would not share any of the alcohol he had purchased. Nash sustained lacerations to his face, head and leg as a result of the machete attack.
The State charged Stow with attempted murder in the first degree, in violation of Hawaii Revised Statute (“HRS”) §§ 705-500 (criminal attempt) and 707-701(l)(a) (murder in the first degree) (Count One). Section 707-701 defines murder in the first degree as intentionally or knowingly causing the death of “[mjore than one person in the same or separate incidents.” The same indictment charged Stow with two separate counts of attempted murder in the second degree, based on the same two incidents. Count Three of the indictment charged Stow with the attempted murder of Samuel Nash on April 17, 1996. Count Five of the indictment charged Stow with the attempted murder of Douglas Parkinson on April 18, 1996. 1 Section 707-701.5 defines murder in the second degree as intentionally or knowingly causing the death of another person.
At the end of the trial, the judge instructed the jury that Stow was charged with more than one offense:
The defendant is charged with more than one offense under separate counts in the complaint. Each count and the evidence that applies to that count is to be considered separately. The fact that you may find the defendant not guilty or guilty of one of the counts charged does not mean that you must reach the same verdict with respect to any other count charged.
The judge proceeded to define the offense of attempted murder in the first degree. 2 The judge then instructed the jury that:
*884 If you find the defendant not guilty in count one of the offense of attempted murder in the first degree, or if you’re unable to reach a unanimous verdict as to this offense, then you must consider whether the defendant is guilty or not guilty in counts three and five of the offense of attempted murder in the second degree.
Contrary to Hawaii law, 3 the judge did not instruct the jury to stop deliberating if it found Stow guilty of Count One. 4 The judge proceeded to instruct the jury on the elements of attempted second degree murder. Finally, the judge admonished the jury that its “verdict must represent the considered judgment of each juror, and in order to return a verdict, it is necessary that each juror agrees thereto.”
On October 26, 1998, the jury returned its verdict. On the verdict form, the jury foreperson wrote “Guilty” next to Count One, attempted murder in the first degree. In accordance with the trial court’s instructions and the verdict form, having found Stow guilty of attempted first degree murder, the jury answered Special Interrogatory # 1 in the affirmative — that the prosecution had proven beyond a reasonable doubt that Stow was not under the influence of extreme mental or emotional disturbance at the time he committed the crime.
The jury foreperson also wrote “Not Guilty” next to Counts Three and Five, the two counts of attempted second degree murder. The jury foreperson signed and dated the verdict form. There were no other markings on the verdict form. 5
When the trial court received the jury’s verdict it only announced the verdict on Count One. The court polled each juror, and each juror responded that the verdict represented his own individual verdict. The court’s final judgment and commitment order only reflected the jury’s verdict on Count One. There is no evidence in the record that the trial court was aware of the jury’s “Not Guilty” verdicts on the two counts of attempted second degree murder.
On direct review, the Hawaii Intermediate Court of Appeals affirmed Stow’s conviction. Ultimately the Hawaii Supreme Court reversed the guilty verdict on the charge of attempted first degree murder for insufficiency of the evidence. 6 Stow, slip op. at 28-29.
*885
The Hawaii Supreme Court held that the jury’s not guilty verdicts did not constitute a double jeopardy bar to a retrial of the two counts of attempted murder in the second degree, and remanded for a new trial on those counts.
Id.
at 34. Citing
United States v. Martin Linen Supply Co.,
Prior to his pending retrial on the two counts of attempted second degree murder, Stow filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Hawaii. The magistrate judge, in his proposed Findings and Recommendations, recommended that the petition be granted.
See Stow v. Murashige,
No. Civ. 02-00766 SOM-KSC,
II.
STANDARD OF REVIEW
We review
de novo
a district court’s decision to grant a habeas petition pursuant to 28 U.S.C. § 2254.
See Alcala v. Woodford,
III.
Discussion
A. The Proper Jurisdictional Basis for Stow’s Habeas Petition Was 28 U.S.C. § 22kl, Not 28 U.S.C. § 225k.
We first address the proper jurisdictional statute for Stow’s habeas petition. Stow filed his habeas petition invoking jurisdiction pursuant to 28 U.S.C. § 2254. Without considering whether § 2254 was the proper jurisdictional statute, both the magistrate and district judge analyzed the merits of Stow’s petition under § 2254. However, because Stow was not “in custody pursuant to the judgment of a State court” at the time he filed his petition, the threshold requirement for § 2254, we join four of our sister circuits in holding that Stow’s habeas petition which raised a double jeopardy challenge to his pending retrial is properly treated under § 2241. As a result, in reviewing Stow’s petition we do *886 not apply the heightened standards imposed by the Antiterrorism and Effective Death Penalty Act of 1996 8 contained in 28 U.S.C. § 2254.
Section 2254 confers jurisdiction on a district court to issue “a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court
... on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). “By contrast, the general grant of habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody pursuant to a state court judgment — for example, a defendant in pre-trial detention or awaiting extradition.”
White v. Lambert,
Although Stow was charged with multiple counts, at the conclusion of the trial he was convicted only of attempted first degree murder. As noted, however, the Hawaii Supreme Court reversed his conviction for insufficient evidence and remanded the case for further proceedings. Stow, slip op. at 28-29. As a result of the Hawaii Supreme Court’s decision, Stow’s judgment of conviction was vacated and Stow was no longer in custody pursuant to a state court judgment. Although Stow remained in custody after the court reversed his conviction, his status was that of a pretrial detainee — he was in custody pending his retrial on the counts of attempted second degree murder. As the State acknowledged in supplemental briefing, after the Hawaii Supreme Court reversed Stow’s conviction for attempted first degree murder, there was no longer a judgment of conviction on any count.
In explaining the difference between § 2241 and § 2254 we previously have suggested that a pretrial double jeopardy challenge is properly brought under § 2241. In
McNeely v. Blanas,
we held that a habeas petitioner attacking his pretrial detention should have sought relief under § 2241, not § 2254.
*887 The text of § 2254 also supports this conclusion. Under § 2254, “custody” must be “pursuant to the judgment of a State court.” Only the jury (or judge sitting as a trier of fact) has the initial authority to render a determination of guilt, which is the predicate for a judgment of conviction and sentence. Although an appellate court may affirm, modify or reverse a judgment of conviction, it lacks the authority to impose a judgment of conviction in the first instance. 10
In the Supreme Court’s recent decision in
Price v. Vincent,
A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d). The double jeopardy claim in respondent’s habeas petition arises out of the same set of facts upon which he based his direct appeal, and the State Supreme Court’s holding that no double jeopardy violation occurred therefore constituted an adjudication of this claim on the merits.
Id.
at 638,
Here, unlike in Price, we are not presented with a situation where the state appellate court has upheld a jury’s verdict of guilty on any count. 12 After the Hawaii *888 Supreme Court’s decision, Stow had yet to be lawfully convicted of any of the charged offenses. Chief Justice Rehnquist, the author of Price, some 30 years earlier noted that without a jury verdict of guilty (or a finding of guilt by the court) § 2254 would not be the appropriate statute for habeas relief. In his dissent in Braden v. 30th Judicial Circuit Court, then Justice Rehnquist noted:
Petitioner filed this petition alleging federal jurisdiction pursuant to 28 U.S.C. §§ 2241, 2254. Section 225J peHains only to a prisoner in custody pursuant to a judgment of conviction of a state court ... The issue here is whether habeas corpus is warranted under § 2241(c)(3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding.
The significance of this determination is that Stow is not required to satisfy the demanding standards of AEDPA embodied in § 2254 to obtain habeas relief. That is, we can affirm the district court’s judgment by concluding de novo that subjecting Stow to a retrial on the attempted second degree murder charges would violate his Fifth Amendment right against double jeopardy. We need not further consider, as the district court did, whether the Hawaii Supreme Court’s decision was “contrary to” or an “unreasonable application of’ clearly established Federal law. See § 2254(d)(1). We turn to the merits of Stow’s double jeopardy argument.
B. The Double Jeopardy Clause Bars Stow’s Impending Retrial.
“[I]t has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when not followed by any judgment, is a bar to a subsequent prosecution for the same offence.”
Green v. United States,
As implicitly recognized by the Hawaii Supreme Court’s decision, what makes Stow’s case unique is the intuition that the jury mistakenly acquitted Stow of the second degree murder charges. However, now over six years later all that is left of the jury’s intent is the “Not Guilty”
*889
verdict. “Having been acquitted by [the trier of fact], the defendants can never be tried again for the same offense. And that principle holds irrespective of whether the prohibited second trial would be held anew in the district court or by this Court on the record created below.”
United States v. Lynch,
The State advances two interlinked arguments why double jeopardy should not bar a retrial, each of which ultimately fails. 14 First, the State argues that an appellate court can examine a jury’s verdict to determine if it reflected an acquittal in both “form” and “substance.” However, this both misunderstands the Supreme Court’s decision in Martin Linen and makes an unwarranted extension of a rule that allows examination of the double jeopardy effect of a judge’s decision to dismiss charges to a jury’s “not guilty” verdict. Second, the State argues that because the “not guilty” verdicts were the result of the trial court’s instructional error it should not be given force and effect. The Supreme Court, however, has explicitly held that jury acquittals, even when based on instructional error, still create a double jeopardy bar.
The State primarily relies on the Hawaii Supreme Court’s determination that, pursuant to Martin Linen, an appellate court can inquire into whether a jury’s “not guilty” verdict represented an acquittal in both “form” and “substance.” We reject this argument.
In
Martin Linen,
the Court was presented with the question of whether the government could appeal the trial court’s dismissal of an indictment, or whether the appeal was barred by the Double Jeopardy Clause.
The State’s reliance on the “form” versus “substance” distinction takes out of context Martin Linen’s discussion of the relevant appellate court inquiry into a judge’s order terminating a case in favor of the defendant. We have found no case, other than the Hawaii Supreme Court decision in Stow, that has applied this test to a jury’s “not guilty” verdict. 15 To do so would divorce the test from its rationale— *890 ie., to determine if the trial court terminated the case for insufficiency of the evidence or for a matter unrelated to the merits, like pre-indictment delay.
More importantly, extending
Martin Linen’s
inquiry to a jury’s verdict undermines the principle of precluding appellate courts from scrutinizing jury verdicts to determine whether in fact the jury intended to find the defendant “not guilty.” The application of the
Martin Linen
test to allow an appellate court to examine whether a jury’s verdict, whether “not guilty” or “guilty,” has
actually
resolved all of the factual elements would invite appellate courts to determine whether, in their view, the verdict is correct. While a judge may terminate a prosecution for a variety of procedural reasons, a jury simply has two. Both the verdict of “guilty” and “not guilty” by definition represent a factual resolution of the charged offense.
16
Allowing an appellate court to look behind a jury’s verdict conflicts with the rule that appellate courts should not scrutinize jury verdicts. “That the[ineonsistent] verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by ... inquiry into such matters.”
Dunn v. United States,
That there cannot be further appellate inquiry into a jury’s verdict is confirmed by the doctrine that even “egregiously erroneous” jury verdicts are nonetheless a bar to a subsequent prosecution.
See Fong Foo v. United States,
The State also relies, to some extent, on the Hawaii Supreme Court’s holding that the erroneous jury instructions undermined the double jeopardy effect of the jury’s not guilty verdicts. The Hawaii Supreme Court held that the trial court’s instructional error which had the effect of equating the mens rea for first and second degree attempted murder led to “juror error” in returning “not guilty” verdicts on Counts Three and Five. Stow, slip op. at 33 (“[W]e do not believe that the jury was so misguided as to believe that it could find Stow guilty of attempted murder in the first degree, as well as two counts of attempted murder in the second degree.”). The court further reasoned that because of *891 this combination of trial court instructional error and “juror error” it was clear that the jury had not resolved all of the factual elements in favor of acquittal on Counts Three and Five because the jury had resolved those precise elements the opposite way on Count One. This part of the Hawaii Supreme Court’s analysis relying on the instructional error to reach its conclusion conflicts with several other firmly established principles of double jeopardy law.
Ultimately any instructional error, even if it led to the jury’s verdict of “not guilty,” is irrelevant for double jeopardy purposes. The Supreme Court has clearly held that a jury’s verdict of acquittal — even if “based upon an egregiously erroneous foundation” — nonetheless creates a double jeopardy bar.
Fong Foo,
This is true even when, as here, the jury’s acquittal was supposedly based on an error of law.
See Arizona v. Rumsey,
In sum, even if the jury did return “Not Guilty” verdicts because of an error of law by the trial court, even this potentially “egregiously erroneous” acquittal still raises a double jeopardy bar to a subsequent retrial.
Finally, to the extent that the State argues that the jury could not have resolved all of the factual elements on the second degree murder counts because it already had resolved them the opposite
*892
way on the first degree murder count, this argument reduces to an assertion that the verdicts were inconsistent. The Supreme Court has held, however, that inconsistent jury verdicts nonetheless create a double jeopardy bar to subsequent retrial. “It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.”
United States v. Powell,
IV.
Conclusion
We hold that Stew’s habeas petition is properly considered under 28 U.S.C. § 2241, not § 2254. Because Stew’s impending retrial on the charges of attempted second degree murder would violate double jeopardy, the district court’s judgment granting Stew’s habeas petition is AFFIRMED.
Notes
. Count Two of the indictment charged Stow with attempted robbery in the first degree in violation of HRS §§ 705-500 and 708-840. The trial court dismissed this count for insufficient evidence at the close of the State's case. Count Four charged Stow with terror-istic threatening in the first degree, in violation of HRS §§ 707-716(l)(d). The prosecutor dismissed this charge during trial as the main witness to the alleged threats testified while intoxicated.
. According to the Hawaii Supreme Court, the attempted first degree murder instruction was erroneous because it did not "adequately apprise the jurors of the requisite state of *884 mind for the offense." Contrary to Hawaii law, the instruction failed to make clear to the jury that it was required to find that the defendant "acted pursuant to a continuing course of conduct or a common scheme or plan.” State v. Stow, No. 23138, slip. op. at 33 n. 19 (Haw. Feb. 21, 2002). In other words, to obtain a conviction the State had to prove that when Stow attacked Nash on April 17 he also intended, at that time, to murder Parkinson as "part of a continuing course of conduct.” Id. at 28.
.
See State v. Cullen,
. The prosecutor in his closing argument, however, did state to the jury: “You will not find the man guilty of all three charges.... If you find that this defendant [is] guilty of the offense of[attempted] murder in the first degree, you don't even look any farther. That’s it. That’s your whole job.” The prosecutor later stated: "remember you don't look at attempted murder in the second degree unless you decide that the defendant is not guilty of attempted murder in the first degree.”
. Although the jury instructions and the verdict form instructed the jury to consider the offense of assault in the first degree if it returned a "Not Guilty” verdict on either count of attempted second degree murder, the rest of the verdict form was blank.
. This holding created a double jeopardy bar to retrying Stow on the attempted first degree murder charge.
See Burks,
. Nor does the State argue in this appeal that the verdicts did not comply with the requirements of Hawaii law and are therefore procedurally flawed. Under Hawaii Rule of Penal Procedure 31(a), the requirements for a properly returned verdict are: "The verdict shall be unanimous, unless otherwise stipulated to by the parties. It shall be returned by the jury to the judge in open court.” The verdicts on the counts of attempted second degree murder fulfilled these requirements.
. Pub.L. No. 104-132, Title I, § 104, 110 Stat. 1218.
. The First, Fifth and Eighth Circuits similarly have held that § 2241 is the proper statutory basis for a pretrial double jeopardy challenge. In advance of a pending retrial, the First Circuit noted the following in holding that the petitioner’s double jeopardy challenge was properly brought under § 2241: “Section 2254 which requires exhaustion, applies only to petitions filed after the state has rendered a judgment and hence affords neither a source of power nor a definition of exhaustion applicable to this case.’’
Benson v. Superior Court,
. Hawaii Rule of Penal Procedure 32(a) makes clear it is only the trial court that may impose a judgment of conviction. The rule states: “After adjudication of guilt, sentence shall be imposed without unreasonable delay. ... Before suspending or imposing sentence, the court shall address the defendant personally and afford a fair opportunity to the defendant and defendant’s counsel, if any, to make a statement and present any information in mitigation of punishment.” Similarly, while Hawaii Rule of Penal Procedure 23 allows for trial by either a jury or the trial court, there is no mention of the appellate court.
. In
Price,
the jury found Price guilty.
Id.
at 637,
. Our decision in
Santamaria v. Horsley,
. As Westen has noted, "unlike other constitutional provisions, the double jeopardy clause is a triptych of three separate values: (1) the integrity of jury verdicts of not guilty, (2) the lawful administration of prescribed sentences, and (3) the interest in repose.” Westen, supra, at 1002. It is the integrity of the jury's verdict that is at issue here.
. In the district court, the State advanced a third argument. Relying on our decision in
United States v. Stauffer,
. That
Martin Linen’s test
only applies
to
a judge’s dismissal order is reinforced by the government's concession in
Martin Linen
that “a verdict of acquittal formally returned by the jury should absolutely bar further proceedings.”
Id.
at 572,
. In examining the difference between the double jeopardy effect of a reversal of a conviction and a jury acquittal one leading treatise has noted: "only in the latter situation is there concrete evidence, in the form of a not guilty verdict, that the jury may have resolved the factual issues in favor of the defendant's innocence.'' LaFave, Israel & King, Criminal Procedure § 25.3(b) (2d ed.1999).
. Although the State does not raise this argument, the jury’s verdict of acquittal, even if not formally entered into the written judgment, still creates a double jeopardy bar.
See Green,
. Indeed, the Supreme Court has held that an acquittal based on an erroneous understanding of the requisite mens rea nonetheless raises a double jeopardy bar to a subsequent retrial. See
Smalis
v.
Pennsylvania,